Fifth Circuit Rebuffs Attempt to Impose Reliability Requirements on Future Dangerousness Testimony at Capital Sentencing

On Thursday, a Fifth Circuit panel held that expert evidence on future dangerousness, offered during the sentencing phase of federal capital proceedings, need not satisfy Daubert's reliability requirements. The contrary position had been urged not only by the death-sentenced appellant, but also by the American Psychological Association as amicus curiae. See United States v. Fields, No. 04-50393 (5th Cir. Mar. 29, 2007) (King, Smith, & Benavides, JJ.).

The Federal Death Penalty Act ("FDPA") provides that evidence at sentencing may be considered "regardless of its admissibility under the rules governing admission of evidence at criminal trials." 18 U.S.C. § 3593(c). Because Daubert is a creature of the Federal Rules of Evidence, its reliability requirement is "not directly applicable" in sentencing proceedings, the panel said. True, the FDPA also provides that "information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." Id. But this language, said the panel, cannot be read as requirement that "the probative value of expert testimony for sentencing purposes" be evaluated in "a form of Daubert hearing." Any such argument would be "better couched as a constitutional claim based in the Eighth and Fifth Amendments," the court said -- before going on to hold that any constitutional argument in this vein was simply impossible under Barefoot v. Estelle, 463 U.S. 880 (1983).

Apparently perceiving some need to defend the pre-Daubert ruling in Barefoot v. Estelle against arguments that its appraisal might be dated, the panel said the following in footnote 28 of its opinion:

A recent opinion by Justice Stevens confirmed the breadth and continuing viability of Barefoot. See United States v. Scheffer, 523 U.S. 303, 334 (1998) (Stevens, J., dissenting) ("There is no legal requirement that expert testimony must satisfy a particular degree of reliability to be admissible. Expert testimony about a defendant's 'future dangerousness' to determine his eligibility for the death penalty, even if wrong 'most of the time,' is routinely admitted.") (emphasis added). No member of the Scheffer Court disagreed.

Justice Stevens's "recent" dissent in Scheffer can be found here. Scheffer, it may be recalled, was a 1998 decision in which the Supreme Court upheld a military tribunal's ban on polygraph testimony against constitutional challenge. How far Justice Stevens's dissent "confirm[s] the breadth and continuing viability of Barefoot" is a judgment we leave to the reader.